Gender and the Eve-of-Wedding Prenup

Gender wars are alive and well in the blogsphere recently. While it seems to me that more than enough cyber ink has been spilled over boobgate and the fracas over Above the Law, I do think that the role of gender in law and culture continues to be actually difficult and worth discussing. I am teaching Family Law for the first time this semester and have noticed that my students often find ideals of formal sex equality extremely unsatisfying. As an example, I offer the enforceability of the eve of wedding prenup.

Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, Fred’s lawyer presents Catherine with a prenup limiting her to support payments of $200 per week with a max of $25,000 should their wedded bliss end in divorce. Catherine signs — without any legal advice. Should this be enforceable?

This hypothetical is of course a case, Simeone v. Simeone, which was decided in 1990 by the Supreme Court of Pennsylvania. The majority rejected the old rule that prenups would be enforced only if they made reasonable provisions for the other spouse or were entered into after full disclosure of finances and statutory rights. The court’s new rule — that prenups should be treated like any old contract — ostensibly rested upon the invalidity of old stereotypes of women as homemakers and men as breadwinners. The court also suggested that treating prenups differently than other contracts would be akin to finding that women were the weaker sex, uninformed, uneducated and subject to unfair advantage in marital agreements. A paean to formal equality!

The concurrence mocks the majority’s assumptions about women’s “equality” in the real world. Justice Papadakos writes: “Mr. Justice Flaherty believes that, with the hard-fought victory of the Equal Rights Amendment in Pennsylvania, all vestiges of inequality between the sexes have been erased and women are now treated equally under the law. I fear my colleague does not live in the real world. If I did not know him better I would think that his statements smack of male chauvinism, an attitude that ‘you women asked for it, now live with it.'”

Would a legal rule that prenups should be treated differently than other contracts akin to the old rules that paternalistically protected women from both the stresses of society and themselves — like those that prevented women from tending bar? We could of course fashion a gender neutral rule that had the intended effect: prenups are unenforceable unless both parties had legal advice. Our reasoning might be that the parties are emotionally unable to engage in arms-length bargaining. They are about to get married, after all, and are likely in the throngs of idealism. Of course — someone is pushing the prenup in the first place so is obviously a bit more cold-eyed than the blissful image suggests. Would my legal rule be a veiled attempt to protect women from themselves? Perhaps — though it would have the effect of protecting men in some situations, too.

Like my students, I find myself torn between legal rules that confirm gender differences and those that ignore them.

9 Responses

I don’t know what the right rule would be, but, following your remarks, “Our reasoning might be that the parties are emotionally unable to engage in arms-length bargaining. They are about to get married, after all, and are likely in the throngs of idealism.”, it doesn’t seem that we must choose between a rule that confirms gender differences or ignores them since, as you note, this rule is gender-neutral but also says that pre-nups are not like every other contract. (Is a contract between a parent and child treated just the same as any other? I can’t recall.) Not every situation is the same, so having the same rules for all will lead to problems. We can’t make different rules for each case, of course, but we can perhaps pick out some likely ones and this might be one.

How about a gender neutral rule to the effect that prenups are unenforceable unless both parties had “family and marriage therapy” advice, i.e. counseling. There have been advances in the social sciences and medical professions, especially in evolutionary psychology and family systems theory, that offer useful information to those about to enter what Joseph Campbell called “the ordeal” of marriage.

How about a gender-neutral per se rule that any and all antenuptials are voidable (not void) on unconscionability grounds?

In any case, one has to ask, “If not now, then when?” Remedial benign discrimination that is declared to be “temporary” tends not to be. See generally, Affirmative Action, the Voting Rights Act, and, most tellingly, Justice O’Connor’s opinion in Grutter v. Bollinger (“It has been 25 years since [Bakke] first approved the use of race to further an interest in student body diversity in the context of public higher education. … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”)

Yeah, right.

Or, as William Rehnquist said (somewhere), “You have to take the bitter with the sweet.”

“Our reasoning might be that the parties are emotionally unable to engage in arms-length bargaining. They are about to get married, after all, and are likely in the throngs of idealism.” Interesting — I’ve been referring in my contracts class to how ante-agreement parties are often like a couple entering a marriage, all hope and optimism. But then things start to break down, and the vague promises they made in good faith at the ceremony are suddenly given very different spins by each party. That’s my impression of where a lot of contracts cases come from, anyway, and it’s hastily formed at best. But if even slightly accurate, it makes the pre-marriage contract just a more extreme version of the lack of fully arms-length bargaining in many business contexts. Which is not to say it doesn’t cross some sort of important line.

Maybe I’ve been out of law school too long, but I don’t see why we can’t treat them like any old contract. That will tend to benefit the richer party, which in some cases will be male and others female. If the pre-nups are really bad and really unfair, we have the good old contract law ways of voiding the contract on behalf of the unsophisticated party. So it comes down to who the family law judges are. Maybe we should have strict gender equity in who gets to become a family law judge.

If we were going to treat pre-nups like any old contract, where would duress fit in? If the imminent wedding were of the more elaborate kind, with tens of thousands of dollars already spent or committed, and scores, often hundreds of guest invited (maybe in the air as the contract was proffered), the bride (in this case) certainly doesn’t have any reasonable alternative — if “reasonable” is given any real meaning.

I guess the problem is that the only traditional requirement for duress isn’t satisfied — the wrongful threat. The threat to back out at the last minute isn’t viewed as independently wrongful, although it doesn’t seem such a stretch in this situation.

But does it matter that the law has already intervened to tilt the playing field towards the offeror in the prenup case? Plain ole contract law would permit damages for breach of an agreement to marry, and, since the subject matter is highly personal, might even allow emotional distress damages (not normally recoverable in contracts). But due to a series of “heart balm” statutes, such recovery is not permissible in most states.

Surely this ought to factor into the analysis of prenups, at least eleventh-hour prenups.

Come on, Charlie! How many brides are going to play hardball and threaten the pre-nup-offering groom with litigation for backing out of the wedding? I can easily imagine the conversation:

Him: “Honey, its not that I don’t love you. I just need to know you love me for me and not for my millions.”

Her: “But darling, of course I love you and not your money! But a prenup? It seems like you think we’ll get divorced!”

Him: “No, never! The agreement is simply an insurance policy for both of us. All it says is that if the worst happens, you keep what was yours before our wedding and I keep what was mine? What is unfair about that?”

Her: “I can’t believe you are making me look at this the day before the wedding!”

Him: “I am sorry, sweetheart, but if you can’t agree to sign the agreement, I don’t think I can marry you in the morning. How can I really be sure you love me?” (a tear trickles down his cheek)

Her (steely eyed): “I’m not signing. And, you’re mistaken if you think you’ll get off scott free. My lawyer says I have an action for breach of agreement to marry if you back out — I might even be able to recover distress damages.”

Ok — so I won’t give up my day job for screen writing. But you get my point!

No one is “forced” to sign a pre-nup (I neglect the rare case of actual duress or incapacity, which we need no special rule to deal with). Each party chooses to sign, because he or she thinks s/he will be happier married on such terms than not married at all. In fact, written pre-nups evidence the parties’ agreement much better than later, possibly-conflicting stories about oral promises to one another.

(It is slightly slimy of one party to demand a pre-nup from the other “right before the wedding.” But should that void the pre-nup? We don’t void mortgage contracts even when lenders demand extra fees and interest “right before escrow closes.” (Which they do almost every time, whereas pre-nup demands are pretty rare.))

More to the point, it would be bad public policy to weaken pre-nups. Almost by definition, the party who proposes the pre-nup has thought carefully about the obligations which marriage will place on both parties. Both parties then bargain to refine and particularize the terms of their marriage agreement. If they cannot agree, they don’t marry.

We should encourage pre-nups, to minimize post-nuptial disagreement, rancor, and even attempts to obtain unjust enrichment. It’s no objection that the party with more money commonly initiates the pre-nup bargaining–that party has more to lose by failing to reach a clear agreement, so has a stronger incentive to bargain diligently. (Also, the party with more money faces much more risk should the marriage fail, because courts routinely order more affluent divorced persons to pay money to their former spouses. A party who contributes mainly personal services to a marriage does not take on any comparable risk, because courts pretty-much never order a divorced person to provide personal services to a former spouse.)

If we void pre-nups, or make them too easy for one party to void retrospectively, we remove an important tool for parties to discover each other’s real interests and reach a mutually-satisfactory bargain. Parties barred by law from making enforceable pre-nup contracts may think the vague background law of marriage (or more likely, of marriage dissolution) will put them at more risk than they wish to accept. They will then consider other means of reducing their risk, such as concealing their assets, demanding cohabitation without marriage, etc.

Most of the risk-mitigating measures a party might choose in lieu of a pre-nup are less socially desirable; either they weaken the case for marriage, or they may involve deceit or intimidation. Which is better for society: married partners with a pre-nup who still assume fundamental obligations toward one another (at least while they remain married), or unmarried partners with no clearly defined duties to one another (much less to 3rd parties)? Note that marriage provides strangers with notice of the parties’ status, enabling such things as intestate succession to work smoothly. If parties refuse to marry because they cannot allocate post-nup risks by pre-nup agreement, they also deprive everyone else of clear evidence about what those parties do wish to share.

A point of contention with the assumption that pre-nups must be treated like any other contract isn’t necessarily a bad thing. Most contract law provides for special consideration in cases where the legal bargaining power of one party greatly outweighs the bargaining power of the other party, especially when that bargaining power is used to advance the interests of the more powerful party.

That being said, prenups are different because one needs to take into account the initial combined holdings (and separate holdings) of each party as well as the end result. Other factors that should be considered is the physical, spiritual, financial, and even emotional contributions of one party (male or female) to the other.

The truth is, these laws don’t just protect women. Those that would assume so, are in fact, guilty of the same “sexism” or “chauvinism” as one who would assume the “you asked for it” mentality. If we’re truly going to be modern, we should think about this from a standpoint of a male looking for a higher alimony from a female. Or perhaps in the future we’ll look at it from a completely sexless point of view, taking into account the needs of same-sex partners who are seeking a legal divorce (presumably because they had a legal marriage). In addition, many states

Another point of contention I didn’t see mentioned in this article is that of the position of a woman who lives in a culture (Islam, some Jewish, or Amish sects) that does not allow her to earn a living, or greatly discourages her from pursuing a career, yet still allows her to become the victim of divorce. These women are most definitely modern women, unfortunately, for them, the unequal bargaining power of their husband, combined with his ability to access legal resources more easily sometimes renders them practically helpless when it comes to protecting themselves legally. For each law, there is an exception. For these reasons, and many that we can’t imagine I believe that marriage law should be a totally different category from typical contract law. There is just too much at stake.

This always reminds me of racism in politics and law. Its hard to know when to celebrate different cultures and heritages, and when to disregard a person’s race/religion/national origin for the sake of preserving justice. Racism, like sexism still exists. For that reason, laws that protect minorities and women…those that might become victims, without encroaching on the rights of the majority, are vital. Maintaining the theory that women are somehow weakened as a result of special laws for marriage contracts and pre-nups only serves to take the focus off of the things that actually do make women weaker: ignorance, starvation, poverty, abuse, pornography, illiteracy, breast cancer, and insurance companies. That’s right, I said insurance companies.